K. A. GHANI, J.---The petitioners have challenged the order made on 2nd November, 1976 by respondent No. 1 (O. S. D.-Federal Land Commission) as having been passed without lawful authority and thus of no legal effect.
The brief facts of the case are that Noor Ahmed Khan respondent No. 4 and Mst. Hakimzadi respondent No. 5 (sister of respondent No. 4) owned 0.58 paisas and 0.29 paisas shares respectively in a total area of 601-87 Acres of land comprised in survey numbers 100, 101, 104 to 107, 129 to 135, 355 to 370, 379 to 389, 391 to 408, 412 to 420, 424 to 429, 432 to 437, 494 to 496, 498 to 503, 511 to 513 and 518 to 526 situated in Deh Jehanwah, Taluka Shikarpur, District Sukkur Sind. According to the case of the petitioners in the years 1971 they purchased 0.37 paisas share from respondent No. 4 and 0.19 paisas share from the respondent No. 5 (total area under sale being 316 Acres) for a total consideration of Rs. 63,200. The petitioners Nos. 1 and 2 claimed to have purchased 0.19 paisas share each while the peti--tioner No. 3 purchased 0.18 paisas share from them. In order to give effect to the above sales in favour of the petitioners statement was given by respondents Nos. 4 and 5 before the Mukhtiarkar Shikarpur on 29th March, .1971 wherein the said respondents acknowledged the receipt of the sale, consideration and having put the petitioners in posses--sion of the land in question. On the basis of the aforesaid statement, entries in the records of rights were duly made in favour of the petitioners. A certified copy of the original counterfoil of Village Form XV wherein the statement of respondents Nos. 4 and 5 and the entry of mutation in favour of the petitioners, has been produced and was not disputed before us.
3. It may be mentioned here that Mst. Shamul Khatoon, mother of respondents Nos. 4 and 5 also owned a share in the holding referred to above. A private partition however by consent of concerned parties was effected between the petitioners, respondents Nos. 4 and 5 and Mst.
Shamul Khatoon and statement affirming such a partition was given on 8th December, 1971 before the Mukhtiarkar Shikarpur. On the basis of the said statement, entries pursuant to the private partition in the names of the petitioners to the extent of their individual holdings were recorded in the records of rights on that day. The petitioners have produced Village Form XV evidencing the partition referred to above. The petitioners on account of the aforesaid transactions came to be recorded as the owners of land purchased by them as stated above and have since then been enjoying undisturbed possession.
4. On promulgation of the Land Reforms Regulation, 1972, respon--dents Nos. 4 and 5 individually disclosed their entire holdings of the land including the alienations made by them in favour of the petitioners within the prescribed period.
5. The cases of respondents Nos. 4 and 5 were referred to the then Land Commissioner, Sind for verification of the bona fides of the transactions as required vide para. 7 (1) (b) of M L R 115 in view of the fact that the said alienations had been made after 1st March, 1967. The Land Commissioner, Sind, by his order passed on 1st August, 1972 in respect of, the alienations made by respondent No. 4 and by a separate order passed on 27th July, 1972 in respect of the alienation made by res-- pondent No. 5, declared the said alienations in favour of the petitioners to be bona fide and not to be void.
6. Subsequently on account of creation of divisions in the province of Sind the post of Land Commissioner, Sind having been abolished, the respondent No. 3 Deputy Land Commissioner Sukkur took up the cases for finally determining the holdings of the above-named declarants under the provisions of para. 8 of M L R 115. By his order dated 20th May, 1972 respondent No. 3, therefore, determined the holdings of respon--dents Nos. 4 and 5 and held that in view of the aforementioned alienations the bona fides whereof had already been determined by Land Commissioner, Sind, the declarants were not required to surrender any area.
7. According to the petitioners, subsequent to the aforesaid orders, the respondent No. 1 in the purported exercise of his powers of suo motu revision under para. 29 of MLR 115 took up the matter.
Notices were published in the daily newspaper known as Inqilab directing the peti--tioners and respondents Nos. 4 and 5 to appear before the respondent No. 1. The petitioners have stated that the said Newspaper is not available for sale at the places of residence of the petitioners and as such they did not come to know of the publication of the said notice in the above-mentioned Newspaper and they further pleaded that no notice was served on the petitioners by respondent No. 3 for appearance before respondent No. 1. These statements have remained unrebutted though it is claimed that the mode of service was valid and shall be deemed to be good service in terms of rule 7 (c) of the Federal Land Commission Rules, 1974. According to the petitioners, on subsequently coming to know that respondent No. 1 passed the two orders which were announced on 2nd November, 1976 whereby the alienations made by the respondents Nos. 4 and 5 in their favour had been declared to be void for the purposes of the Land Reforms and that respondent No. 1 had further directed that the land subject-matter of these alienations be included in the holdings of the declarants, and the Deputy Land Commissioners had been ordered to pass determination order afresh and resume the excess area, they preferred this petition in this Court challenging the aforesaid order passed on 2nd November, 1976 by respondent No. 1, as they have no other alter-- native adequate remedy available to them.
8. With the assistance of Mr. Imam Ali Kazi the learned counsel for the petitioners we have gone through the record and find that the learned respondent No. 1 set aside the order of the Land Commissioner Sind onthe grounds :-
(i) that the transactions for considerations exceeding Rs. 100 required registration under section 54, Transfer of Property Act and the same being not so registered were invalid. ,
(ii) The sale consideration was ridiculously low.
9. The legal position has already been discussed by us in Mst. Kulsoom v. O. S. D. Federal Land Commission (C. P. No. 160 of 1977) wherein following the judgment of Sanchomal v. O. S. D., Federal Land Commission (PLD 1981 Kar. 393), we have held that alienations of land for purposes of M L R 115 need not strictly be de jure i.e. Registered in accordance with the Transfer of Property Act and that what the Land Commission is to see is whether in effect the transfer is complete even if it is not strictly so under the general law governing the transfer of property.
A perusal of the record of this case clearly shows that the alienations in question fulfilled the requirements laid down by the case declared by this Court in the above-cited case of Sanchomal v. O. S. D. Federal Land Commission, and were complete within the meaning of the provisions of M L R 115.
The oral purchases of the land in question were made in 1971 and in order to give effect to the said sales in favour of the petitioners/respon--dents Nos. 4 and 5 gave such statements before the concerned Mukhtiarkar on 29th March, 1971, consideration was admitted, and delivery of posses-- sion of the said lands to the petitioners/purchasers was also acknowledged. This was followed by mutation of the names of the petitioners of the lands in question in the record of rights.
Furthermore, there was private partition between the petitioners, the respondents Nos. 4 and 5 and Mst. Shamul Khatoon, in respect of which a statement was given before Mukhtiarkar Shikarpur affirming the partition on 8th December. 1971.
10. We have already noted above that on the basis of the aforesaid statement admitting the private partition the names of the petitioners to the extent of their individual holding were recorded in the record of rights on that day and which fact is proved from the counterfoil of the Village Form XV has been produced evidencing the partition referred to above. It is not denied that the petitioners were recorded as owners of the land purchased by them persuant to the above transactions followed by private partition of the lands in question and that the petitioners since then are enjoying undisturbed possession thereof till this date. These transactions were verified by the Land Commissioner, Sind and declared bona fide valid by orders passed on 1st August, 1972 and 27th July, 1972 and also by respondent No. 3 who finally determined the holdings of the declarants under para. 8 of the M L R 1.15.
11. In the circumstances stated above we find that there was no justification in law for the Respondent No. 1 to set aside the said alienations in exercise of power of suo motu Revision merely on the ground that the sales were not registered as required by section 54 of the Transfer of Property Act.
12. As regards the objection about the inadequacy of the price it would suffice to state here that the said alienations were found to be bona fide and not void by the Sind Land Commissioner as well as Deputy Land Commissioner, Sukkur. However the aforesaid orders were set aside by the learned Respondent No. 1 without properly serving any notice upon the petitioners. We also find that the order of the learned Respondent No. 1 is based upon alleged average sale price reported by the Deputy Land Commissioner on the basis of sale mutations stated to have been entered during the period of five years. However, such instances have neither been referred in the impugned order nor any sufficient opportunity was given to the petitioners to rebut the same. The findings of the Respondent No. 1 in this regard are based upon inadmis--sible evidence and could not have formed basis of setting aside the alienations in their favour without giving any opportunity to the petitioners to rebut the same.
13. In the circumstances of the case we find that the impugned order passed by the Respondent No. 1 on 2nd November, 1976 so far as it relates to the entitlements of the three petitioners in this case cannot in law be sustained and the same are declared to have been passed without any lawful authority and as of no legal effect and accordingly the same are quashed to that extent.
14. We may note here that Mr. Dawood Khan an official of the Federal Land Commission was present in Court at the time of hearing of this petition but he stated that the Commission did not want to defend this case.
15. The impugned order was quashed by a short order passed by us on 2nd September, 1981 and the above are the reasons for the same.
16. The petition accordingly succeeds and the impugned order passed by the Respondent No. 1 on 2nd November, 1976 to the extent the same relates to the three petitioners are declared to be without lawful authority and of no legal effect.
Since the petition has not been defended by the respondents, there shall be no order as to costs.